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709 F.

2d 1424

UNITED STATES of America, Plaintiff-Appellee,


v.
ONE 1979 PORSCHE COUPE, VIN 9289200514, Defendant,
Clarence Lee McDowell, Claimant-Appellant.
No. 82-8558

United States Court of Appeals,


Eleventh Circuit.
July 18, 1983.

Douglas Edward Cobb, Norcross, Ga., for 1979 Porsche.


Kathie McClure, Myra H. Dixon, Asst. U.S. Attys., Atlanta, Ga., for
plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before RONEY, VANCE, and ANDERSON, Circuit Judges.
PER CURIAM:

This case involves the seizure of a 1979 Porsche automobile by virtue of its
alleged use in facilitating a drug transaction. Claimant, Clarence Lee
McDowell, was convicted in the United States District Court for the Northern
District of Georgia of attempt to possess with intent to distribute cocaine
hydrochloride in violation of 21 U.S.C.A. Sec. 846 (West 1981). The United
States then instituted proceedings under 21 U.S.C.A. Sec. 881 (West 1981) for
forfeiture of McDowell's vehicle, a 1979 Porsche Coupe. After a non-jury trial,
the court entered judgment for the United States, finding that the government
had demonstrated probable cause for the forfeiture. In this appeal from that
judgment, McDowell contends that the government did not make the showing
necessary to justify a forfeiture because (a) the government did not prove a
sufficient nexus between the use of the vehicle and the attempted illegal
transaction, and (b) McDowell's actions did not amount to an "attempt" to
purchase a controlled substance. Additionally, McDowell asserts that illegally

obtained evidence excluded from his criminal trial was improperly admitted
during the forfeiture proceeding. We disagree, and affirm the forfeiture order.
I. FACTS
2

The record below demonstrates that McDowell was the owner of a 1979
Porsche, the subject matter of this forfeiture proceeding. On August 1, 1979,
McDowell drove the Porsche from his home in Knoxville, Tennessee, to
Atlanta, Georgia. Upon his arrival, he registered at the Marriott Hotel at
Perimeter Mall in Atlanta, and then drove to a friend's house where he spent the
night. The next day, after receiving a phone call, McDowell drove back to the
Marriott, where he met in his hotel room with Charles Crane and Fernando
Delmau to discuss the possible purchase by McDowell of one kilogram of
cocaine. Unknown to McDowell, Crane was a DEA agent and Delmau was an
informant for the DEA. Although the parties were unable to agree on all terms,
it was established that McDowell would pay $58,000 for the cocaine;
McDowell told the agents that the money was nearby and readily obtainable.
Later in the day, McDowell again met with the two agents in his hotel room to
attempt to arrive at a complete agreement. The two agents proffered the
cocaine, wrapped in clear plastic, but upon examination McDowell declined to
purchase the cocaine. According to Agent Crane, McDowell stated that "he did
not like the quality of the cocaine, it was like nothing he had ever seen before."
In fact, the substance was not cocaine. Shortly thereafter, the agents arrested
McDowell.

According to McDowell, he and Delmau were old acquaintances. On an earlier


occasion, Delmau had told McDowell that he had been forced to go under cover
for the DEA because of various legal problems relating to narcotics.
Apparently, Delmau needed to buy time with the government until he could
resolve his problems.1 McDowell asserts that he therefore agreed to work with
Delmau in setting up a "sham" drug deal, in which no purchase would actually
be consummated. In support of this story, McDowell points out that after his
arrest agents were unable to find any of the money which McDowell had
claimed to have nearby when negotiating the transaction.

After McDowell's conviction for attempting to purchase cocaine, the


government instituted this proceeding for the forfeiture of the Porsche in which
McDowell drove to Atlanta.2 After a non-jury trial, the trial court concluded
that the vehicle had been used to facilitate the attempted purchase and therefore
ordered the vehicle forfeited.

II. FORFEITURE

To support a forfeiture under Sec. 881, the government must demonstrate


probable cause for the belief that a substantial connection exists between the
vehicle to be forfeited and the relevant criminal activity. Probable cause in this
context is defined as a reasonable ground for a belief of guilt, supported by less
than prima facie proof but more than mere suspicion. United States v. $364,960
in U.S. Currency, 661 F.2d 319, 323 (5th Cir.1981).3 After the government has
made the necessary showing, the burden of proof shifts to the claimant to
demonstrate by a preponderance of the evidence that the vehicle was not used
to facilitate a narcotics transaction. Id. at 325; see E.A. Shipping Co. v.
Bazemore, 617 F.2d 136, 138 (5th Cir.1980). In our view, the government has
made the necessary showing and the claimant has failed to rebut that showing.

McDowell used the automobile to drive from Knoxville to Atlanta the evening
prior to negotiations. Once in Atlanta, he again used the vehicle to drive to the
hotel where the negotiations took place.4 Although McDowell had offered
$58,000 for the cocaine, there was no evidence that the vehicle was used to
transport any money, as no money was in fact found. Compare United States v.
One 1978 Chevrolet Impala, 614 F.2d 983, 984-85 (5th Cir.1980) (forfeited
vehicle used to transport ingredients for making drugs); United States v. One
1979 Mercury Cougar XR-7, 666 F.2d 228, 230 (5th Cir.1982) (conspirators
used forfeited vehicle to locate airstrip, find storage building for marijuana, rent
motor home in which to live while selling marijuana, and rent U-Haul truck in
which to transport marijuana). Nonetheless, the cases establish that under Sec.
881 it is not necessary for the subject vehicle either to have transported the
illegal substance (or the purchase money) or to have served as the location for
the transaction. See United States v. One 1977 Cadillac Coupe DeVille, 644
F.2d 500, 503 (5th Cir.1981) (Unit B); United States v. One 1979 Mercury
Cougar XR-7, 666 F.2d at 230; United States v. One 1974 Cadillac Eldorado
Sedan, 548 F.2d 421, 427 (2d Cir.1977). The subject vehicle in this case was
used to transport the "pivotal figure in the transaction" several hundred miles to
the precise location at which the attempted purchase took place. See United
States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d at 427 (forfeiture
appropriate where vehicle transported defendant to meeting where purchase
negotiated; not dispositive transaction not consummated until three days later).

In particular, this case is governed by United States v. One 1977 Cadillac


Coupe DeVille, supra. In that case, a panel of the former Fifth Circuit upheld
the forfeiture of an automobile whose sole connection with the crime was its
use in transporting a narcotics supplier "to the actual scene of the transaction."
644 F.2d at 503. As in this case, the subject automobile had transported neither
contraband nor money. We thus hold that the Porsche had a sufficient nexus to
the attempted drug purchase to support the forfeiture.

McDowell also argues that his conduct, viewed objectively, does not legally
constitute the crime of "attempt." He contends that because the subject of the
transaction was not actually cocaine, and because the absence of money
indicates he did not seriously intend to negotiate a drug transaction, objective
acts corroborating his intent are totally lacking. See United States v. Korn, 557
F.2d 1089, 1091 (5th Cir.1977). In addition, he argues that he renounced any
criminal purpose when he rejected the sham cocaine. These contentions,
however, have all been decided adversely to McDowell in his direct appeal
from his conviction. United States v. McDowell, 705 F.2d 426 at 428-29 (11th
Cir.1983). Accordingly, these arguments are without merit.

III. USE OF EVIDENCE FROM UNLAWFUL SEARCH


9

During McDowell's trial on the criminal charge, the court excluded from
evidence a Tupperware container containing traces of cocaine hydrochloride
which had been procured in an unlawful search of McDowell's car. During the
forfeiture hearing, however, the government was allowed to introduce this
evidence in order to impeach statements McDowell had made on crossexamination.5 McDowell contends that the trial court erred in allowing the use
of this evidence on cross-examination.

10

In United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559
(1980), the Supreme Court held that illegally obtained evidence may be used to
impeach a statement made by a defendant on cross-examination when the
statement being impeached is in response to a question that was reasonably
suggested by the defendant's direct testimony. Id. at 626, 100 S.Ct. at 1916.6 In
the case at bar, the previously excluded evidence was admitted to impeach
McDowell's statements on cross-examination that he had neither purchased
cocaine before nor ever dealt in cocaine. Record on Appeal, vol. 2, at 56-57. In
our view, these questions were reasonably suggested by McDowell's testimony
on direct examination to the effect that he had not driven to Atlanta with the
intent to purchase cocaine and had not planned to transport cocaine back to
Knoxville in the vehicle. See United States v. Hernandez, 646 F.2d 970, 977-78
(5th Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 638, 70 L.Ed.2d 617 (1981).
We therefore hold that the use of the illegally obtained evidence to impeach
McDowell's testimony on cross-examination was proper.

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Accordingly, the order of forfeiture is AFFIRMED.

According to McDowell's testimony, the government was holding over Delmau

the prospect of deportation


2

21 U.S.C.A. Sec. 881(a)(4) states:


(a) The following shall be subject to forfeiture to the United States and no
property right shall exist in them:
***
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or
are intended for use, to transport, or in any manner to facilitate the
transportation, sale, receipt, possession, or concealment of property described in
paragraph (1) or (2) ....

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this
court adopted as binding precedent all of the decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981. Id.
at 1209

During the negotiations the vehicle was parked in the hotel parking lot,
approximately 500-600 feet from McDowell's room

Apparently, this same excluded evidence was also used during McDowell's
criminal trial to impeach his testimony on cross-examination. See Record on
Appeal, vol. 2, at 58

Havens requires that the cross-examination question which elicited the


statement to be impeached must have been "suggested to a reasonably
competent cross-examiner by ... [the defendant's] direct testimony." 446 U.S. at
626, 100 S.Ct. at 1916. It is not necessary that the evidence be directed toward
a specific statement made by the defendant during direct examination. Id. at
624-26, 100 S.Ct. at 1915-16